Citation Nr: 0430985
Decision Date: 11/22/04 Archive Date: 11/29/04
DOCKET NO. 97-32 152A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center (M&ROC) in Wichita, Kansas
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently evaluated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from June 1967 to April
1970.
The Board of Veterans' Appeals (Board) notes that the issue
on appeal arose from rating decisions of the Department of
Veterans Affair (VA) M&ROC in Wichita, Kansas.
This case was previously remanded by the Board in June 2003,
for due process purposes. The case is once again before the
Board for appellate consideration.
This appeal is REMANDED to the M&ROC via the Appeals
Management Center (AMC), in Washington, D.C. VA will notify
you if further action is required on your part.
REMAND
This claim must be afforded expeditious treatment by the
Veterans Benefits Administration(VBA) AMC. The law requires
that all claims that are remanded by the Board or by the CAVC
for additional development or other appropriate action must
be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
2002) (Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs (or VBA AMC) to provide expeditious handling of all cases
that have been remanded by the Board and the CAVC. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Following a preliminary review of the record, the Board notes
that additional development is needed with respect to the
issue of entitlement to increased evaluation for PTSD.
Colvin v. Derwinski, 1 Vet. App. 171 (1991).
The Board notes that over two years have passed since the
veteran was afforded a VA psychiatric examination in
September 2002. The delay in processing the veteran's appeal
was primarily due to unavoidable VA administrative due
process requirements and through no fault of the veteran.
The Board notes that in order to accord this veteran every
equitable consideration, he should be afforded a current
comprehensive VA psychiatric examination with supplemental
psychological tests to determine the present extent of
severity of service-connected PTSD. See Hyder v. Derwinski,
1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121,
124 (1991). Importantly, the Board notes that in Massey v.
Brown, 7 Vet. App. 204 (1994), the CAVC held that examination
findings must be correlated to the pertinent rating criteria.
It does not appear that the VA examiner in September 2002
reviewed the pertinent rating criteria for evaluating
psychiatric disabilities in connection with the veteran's
current claim for an increased rating for PTSD.
Therefore, pursuant to VA's duty to assist the veteran in the
development of facts pertinent to his claim, the Board is
deferring adjudication of the issue on appeal pending a
remand for further development as follows:
1. The veteran has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369
(1999).
In this regard, the RO should contact the
veteran and request that he identify the
names, addresses, and approximate dates
of treatment for all medical care
providers, VA and non-VA, inpatient and
outpatient, who may possess additional
records referable to treatment of PTSD
from approximately September 2002 to the
present.
After obtaining any necessary
authorization or medical releases,
legible copies of the veteran's complete
treatment reports from all sources
identified should be secured if not
already on record.
If any relevant records sought are
unobtainable, the veteran should be
notified of the specific records not
obtained, explaining the efforts used to
obtain those records, and describing any
further action to be taken with respect
to the claim.
2. The veteran should be afforded a VA
special psychiatric examination by a
psychiatrist, or on a fee basis, if
necessary, as well as supplemental
psychological testing for the purpose of
ascertaining the current nature and
extent of severity of service-connected
PTSD. The entire claims folder, a copy
of the criteria for rating psychiatric
disorders, and a separate copy of this
remand must be made available to and
reviewed by the examiner prior and
pursuant to conduction and completion of
the examination. The examiner must
annotate the examination report that the
claims file was in fact made available
for review in conjunction with the
examination. Any further indicated
special studies should be conducted.
The examiner should identify all of the
veteran's associated symptomatology in
order to determine the impairment caused
by PTSD. If there are other psychiatric
disorders found, in addition to PTSD, the
examiner should specify which symptoms
are associated with each disorder(s).
If certain symptomatology cannot be
dissociated from one disorder or another,
it should be so indicated. If a
psychiatric disorder(s) other than PTSD
is or are found on examination, the
examiner should offer an opinion as to
whether such disorder is causally or
etiologically related to PTSD, and, if
not so related, whether the veteran's
PTSD has any effect on the severity of
any other psychiatric disorder. Any
necessary special studies, including
psychological testing, should be
accomplished.
During the course of the examination, the
examiner should identify all of the
symptoms or manifestations of the
veteran's PTSD. Specifically, the
examiner should also offer an opinion as
to how each symptom or manifestation of
the veteran's PTSD affects his social and
industrial adaptability. The examination
findings must be correlated to the
pertinent rating criteria for evaluating
psychiatric disabilities with the
examiner recording pertinent medical
complaints, symptoms, and clinical
findings, that pertain to the presence or
absence of PTSD and the extent, of each
of the factors provided in the rating
criteria under Diagnostic Code 9411 for
each of the rating levels of the criteria
for rating psychiatric disorders.
Following evaluation, the examiner should
provide a numerical code under the Global
Assessment of Functioning scale (GAF)
provided in the Diagnostic and
Statistical Manual for Mental Disorders,
in relation to the veteran's impairment
solely due to PTSD. The examiner should
include a definition of the numerical GAF
code assigned, as it relates to the
veteran's occupational and social
impairment.
Any opinions expressed by the examiner as
to the severity of PTSD must be
accompanied by a complete rationale.
3. Thereafter, the veteran's claims file
should be reviewed to ensure that all of
the above requested development has been
completed. In particular, a review
should be undertaken to ensure that the
requested examination report(s) and
required opinion(s) are responsive to and
in complete compliance with the
directives of this remand and if they are
not, corrective procedures should be
implemented. See Stegall v. West, 11
Vet. App. 268 (1998).
4. After undertaking any development
deemed appropriate in addition to that
specified above, the issue of entitlement
to an increased evaluation for PTSD
should be readjudicated to include
consideration of
38 C.F.R. 3.321(b)(1) (2004).
If the benefit sought on appeal is not granted to the
veteran's satisfaction, he should be furnished a supplemental
statement of the case (SSOC).
The SSOC must contain notice of all relevant actions taken on
the claims for benefits, to include a summary of the evidence
and applicable law and regulations considered pertinent to
the issues currently on appeal. A reasonable period of time
for a response should be afforded.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. By this remand, the
Board intimates no opinion as to any final outcome warranted.
The veteran need take no action until he is notified by the
RO; however, the veteran is hereby notified that failure to
report for a scheduled VA examination(s) without good cause
shown may adversely affect the outcome of his claim for an
increased evaluation for PTSD. 38 C.F.R. § 3.655 (2004).
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).